South Africa Case Law

Elias Dunias t/a Colosseum Internet Lounge v Minister of Safety and Security and Others (5682/2013)

Elias Dunias t/a Colosseum Internet Lounge v Minister of Safety and Security and Others (5682/2013) [2013] ZAKZPHC 55 (17 October 2013)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

5682/2013

Judge

Vahed

The court held that the mandament van spolie is not available as a remedy for restoration of possession of goods seized under the authority of a judicial warrant unless and until an order is sought and obtained declaring the warrant invalid and null and void. As the applicant did not seek such an order, the warrant remained effective and the search and seizure were lawful. Consequently, the applicant failed to satisfy the second requirement for spoliation, namely, wrongful deprivation of possession.

Source excerpt

• Mandament Van Spolie
• Search And Seizure
• Judicial Discretion
• Invalid Search Warrant

Visagie t/a Prieska Entertainment Centre v Minister of Safety and Security N.O and Others (1084/2013; 1085/2013)

Visagie t/a Prieska Entertainment Centre v Minister of Safety and Security N.O and Others (1084/2013; 1085/2013) [2013] ZANCHC 30 (6 September 2013)

Court

Northern Cape High Court, Kimberley

Case number

1084/2013; 1085/2013

Judge

C.C. Williams

The court held that, although the search warrants were invalid and the applicants were unlawfully deprived of possession, the Ngqukumba decision of the Supreme Court of Appeal is binding and precludes restoration of possession where such possession is unlawful under statute. The mere lodging of an application for leave to appeal in Ngqukumba does not suspend the binding effect of the SCA's ratio decidendi. Only items lawfully possessed by the applicants must be restored; the gambling machines, being unlawful to possess under the National Gambling Act, cannot be restored. The respondents, havi…

Source excerpt

• Mandament Van Spolie
• Search And Seizure
• Invalid Search Warrant
• Unlawful Possession
• National Gambling Act

Rossouw v Minister of Police and Others (141/2012)

Rossouw v Minister of Police and Others (141/2012) [2012] ZAFSHC 132 (5 July 2012)

Court

Free State High Court, Bloemfontein

Case number

141/2012

Judge

H. Murray

The Court found that the search warrant was invalid as it failed to specify the correct premises, the items to be seized, and the applicable offences. The warrant was addressed to 'All police officers', authorised a search of 'Gusmec Scrap Metal' rather than Vaalkrantz, and only mentioned 'Copper' without further detail. The information before the issuing magistrate was insufficient to justify the warrant. The subsequent search and seizure operation was conducted at Vaalkrantz and included items not specified in the warrant. The respondents failed to provide necessary averments to justify a w…

Source excerpt

• Search And Seizure
• Invalid Search Warrant
• Second Hand Goods Act
• Constitutional Rights
• Return Of Seized Property

Ivanov v North West Gambling Board and Others (312/2011)

Ivanov v North West Gambling Board and Others (312/2011) [2012] ZASCA 92; 2012 (6) SA 67 (SCA); 2012 (2) SACR 408 (SCA); [2012] 4 All SA 1 (SCA) (31 May 2012)

Court

Supreme Court of Appeal

Case number

312/2011

Judges

Cloete, Heher, Snyders, Mhlantla, McLaren

The Supreme Court of Appeal held that the declaration of invalidity of the search warrant operated retrospectively, rendering the search and seizure unlawful from the outset. The appellant was entitled to restoration of possession under the mandament van spolie, regardless of the illegality of his possession of gambling machines. The lawfulness or illegality of possession is irrelevant in spoliation proceedings; the remedy is designed to prevent self-help and restore the status quo ante. Public policy and statutory prohibitions do not bar restoration under spoliation, as criminal law enforcem…

Source excerpt

• Search And Seizure
• Mandament Van Spolie
• Invalid Search Warrant
• Unlawful Possession
• Public Policy
• Retrospective Invalidity

Ivanov v North West Gambling Board and Others (154/2010)

Ivanov v North West Gambling Board and Others (154/2010) [2011] ZANWHC 16 (7 April 2011)

Court

North West High Court, Mafikeng

Case number

154/2010

Judge

M M Leeuw

Leave to appeal was granted in a case about whether seized gambling machines should be restored after an invalid search warrant.

• Mandament Van Spolie
• Search And Seizure
• Invalid Search Warrant
• Restoration Of Possession
• Unlawful Dispossession
• Leave-to-appeal

Nonaye v Minister of Safety and Security and Others (1647/2007)

Nonaye v Minister of Safety and Security and Others (1647/2007) [2008] ZAECHC 38 (9 May 2008)

Court

High Courts - Eastern Cape

Case number

1647/2007

Judge

Makaula

The court set aside a search warrant, held the seizure of a Toyota Hilux unlawful, and ordered the vehicle returned to the applicant.

• Search And Seizure
• Invalid Search Warrant
• Unlawful Detention Of Property
• Constitutional Property Rights
• Search-and-seizure
• Invalid-search-warrant

Toich v Magistrate, Riversdale and Others (6583/06)

Toich v Magistrate, Riversdale and Others (6583/06) [2007] ZAWCHC 26; [2007] 4 All SA 1064 (C); 2007 (2) SACR 235 (C) (25 May 2007)

Court

Western Cape High Court, Cape Town

Case number

6583/06

Judges

Thring, Zondi

The court set aside two search warrants, held the seizures unlawful, and ordered return of the applicant’s property. Claims for damages and an interdict failed.

• Search And Seizure
• Criminal Procedure Act
• Invalid Search Warrant
• Review Of Administrative Action
• Search-and-seizure
• Criminal-procedure-act